The Borrower Who Has To Repay A Loan Twice Even Though He Only Borrowed Once (Siman 76:2)

Sa’if 2, Mechaber: Two plaintiffs sue the defendant and each of them claims he lent the defendant a maneh. The defendant admits he borrowed a maneh from one of them but does not remember from whom. The defendant must give the two plaintiffs a maneh each.

Ner Eyal: Since the borrower, by his own admission, borrowed from one of the plaintiffs, he should have made it his business to record the name of the lender. If he was negligent in doing so, he only has himself to blame and must pay twice.

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This case is different from the previous case of the two lenders discussed in Sa’if 76:1, where the borrower was not penalized for forgetting who lent him what. In that case, one of the lenders had lent two hundred dinarim to the borrower and the one had lent one hundred dinarim to the same borrower. Both loans had been recorded in one single promissory note of three hundred dinarim. Both of the lenders subsequently sued the borrower, each claiming he had lent the borrower two hundred dinarim.

In that case the Mechaber ruled that the defendant was not required to pay two hundred dinarim to each lender. Rather, the Mechaber ruled, the defendant had to take the Shevuat Heiset oath of denial and pay one hundred dinarim to each and place the one hundred dinarim in dispute in escrow until one of the plaintiffs would admit he lent only one hundred dinarim. By combining the two loans into one promissory note, the plaintiffs in that case had themselves viewed the loans as one transaction.

By agreeing that the promissory note would be held by only one of them and that the one holding the promissory note would have the power to sue for the full three hundred dinarim recorded in the note, the two plaintiffs had trusted each other and there was no need for the defendant to assume that one of them would lie and claim what was not his. Therefore, in that case recorded in Sa’if 76:1, the defendant had no obligation to record who gave him what, even if the lenders informed him of that at the time of the loan.

The circumstances in this Sa’if 2 are very different. There is no promissory note. The borrower, when confronted with a claim by two different plaintiffs, both claiming they lent him a maneh, was duty bound to remember which of the two plaintiffs lent him the money. There was no basis for him to assume that the two plaintiffs trusted each other and that one of them would not claim the repayment of a loan he never lent.

Accordingly, in this case, the defendant must pay one hundred dinarim to each plaintiff, provided that each plaintiff takes an oath to the effect that he was the one who lent the borrower one hundred dinarim. The fact that one of the plaintiffs is clearly lying does not exempt the borrower from having to pay twice for a loan he only borrowed once. The court does not know which plaintiff is lying. If it believes one plaintiff over the other, it might be doing an injustice to one of them. The best the court can do in this situation is to compel each plaintiff to take the Shevuat Heiset oath of denial in the hope that the one who is lying will shrink from taking the oath. But if the lying plaintiff is brazen enough to take the Shevuat Heiset oath of denial, the borrower, who was negligent in not recording the name of the lender, will have to pay the price.

Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Maran Hagaon Harav Dovid Feinstein, Shlitah.
A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, where he specializes in cross-border mergers and acquisitions, Raphael is the author of “Ner Eyal, a Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” (2016) and “Ner Eyal, a Guide to the Laws of Shabbat and Festivals in Seder Moed” (2001), both of which are available for purchase at https://www.amazon.com/dp/057816731X
Questions for the author can be sent to rafegrunfeld@gmail.com